[2025] UKUT 00229 (IAC)

As Mr Malik submitted, there are also striking differences between the current version of the policy and version 8, as considered in Mudiyanselage. I have set out the relevant sections of version 8 of the policy and the current version at [44]-[45] above in order to inform the comparison which follows.

In common with paragraph 245AA of the Rules, Version 8 and its predecessors made extensive reference to “specified documents”, which is a term specifically defined at paragraph 39B of the Immigration Rules. The current version of the policy makes no reference to that term. It refers on occasion to “specific documents” and also to “supporting documents” but neither of those terms has any specific meaning in the Immigration Rules. As a result, the logical conundrum which Underhill considered at [57]-[58] of Mudiyanselage (as set out above) continues to apply in relation to paragraph 245AA but is not relevant to the Evidential Flexibility policy in its current form.

Version 8 of the policy made reference to the correction of a “minor error or omission”, whereas that adjective is altogether absent from the current version of the policy.

Version 8 of the policy – like paragraph 245AA of the Rules – applied only to very specific types of missing information: documents missing from a sequence, documents in the wrong format, documents which were copies rather than originals, and documents which did not contain all the specified information. The current version of the policy is cast in much wider terms, and applies where an applicant has made an error with or omitted supporting evidence.

Version 8 of the policy provided caseworkers with a discretion to request additional information in very limited circumstances, whereas the current version of the policy states that an opportunity to provide further evidence “should normally’ be given in the circumstances described.

As Underhill LJ noted in Mudiyanselage, version 8 of the policy stated that caseworkers might only request additional information where they had “reason to believe the information exists”. The current guidance is not so restrictive, stating that caseworkers should consider contacting the applicant “if evidence is missing that you believe the applicant has, or could obtain”.